Search & Seizure in Florida: An Overview

By
Donald Kilfin
|March 16, 2017

As a general principle, American citizens are constitutionally protected
against unreasonable searches and seizures by government agents (including
local law enforcement officers). If a search is to be conducted, it must
be done pursuant to a search warrant, unless a valid exception to the
search warrant requirement exists. This right has its foundation in the
Fourth Amendment to the United States Constitution, which provides as
follows: "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but on probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized". This verbiage
is the bedrock for the manner and circumstances in which warrants are
to be obtained, and searches are to be conducted pursuant thereto.

Where a search and/or seizure is conducted by a law enforcement officer,
in the absence of a warrant, and where no valid exception to the warrant
requirement exists, any drugs, contraband or other purported "fruits
or instrumentalities" of criminal activity will the "suppressed".
This means that the unlawfully obtained evidence cannot be used against
the accused person in any criminal trial that ensues based on that evidence.
Suppression of evidence requires that the accused person's criminal
defense attorney file what is called a "motion to suppress".
Once the motion is filed with the clerk of court, a hearing is set and
the State of Florida must prove, by a preponderance of the evidence, that
the warrant was supported by
probable cause or, in the absence of a warrant, that the search nonetheless passes constitutional
muster because a valid exception to the warrant requirement exists (for
further reading, see the
Defensive Motions section of our website). The law on search in seizure, at both the federal
level and here in the state of Florida, is comprehensive. This post presents
a general overview of the more common issues associated with search and
seizure jurisprudence, including search warrants, and the recognized exemptions
to the warrant requirement.

What is a search?

As set forth above, the Fourth Amendment precludes, at least in part, unreasonable
searches. You should know that the principles articulated in its provisions apply
only to searches conducted by government agents,and not those done by
private citizens or organizations who aren't acting on behalf of the
government. For example, if a police officer went through the passenger
compartment or trunk of your vehicle, that would be considered a search
for the purpose of invoking Fourth Amendment protections and scrutiny.
If the officer lacked a warrant, if you were not already under arrest,
if you did not consent to the search, or if the officer had no basis to
believe that drugs or contraband were located inside, then any drugs or
contraband found pursuant to that search would be suppressed. If, on the
the other hand, your step mother went through your car, found drugs inside,
and called the police, a different result would occur. Here, the search
was conducted by someone other than a government agent, or someone acting
on behalf of the government (assuming, of course, step mom isn't a
police officer acting in her official capacity). In this latter scenario,
the activity that resulted in the drugs or other contraband being discovered
in your vehicle would not be considered a
search, within the meaning of the Fourth Amendment, and therefore, the drugs
or contraband would not be suppressible.

A search occurs when a government agent infringes or intrudes upon premises,
property, information, or even conversations wherein the accused person
would have a "reasonable expectation of privacy". Most of us
would expect privacy from government intrusion into our homes, offices,
vehicles, telephone conversations, e-mails, financial documents, medical
records, and smart phones. If there is a reasonable expectation of privacy
in the premises or property intruded upon, then a warrant must be obtained,
or a valid exception must exist.

What is
not a search?

Not all government intrusions are considered "searches" within
the meaning of the Fourth Amendment. It has been held, for example, that
certain conversations are not subject to constitutional protections. As
a general principle, the Fourth Amendment protects conversations where
no party to that conversation consents to surveillance and/or recording.
The government could not, for example, listen in on your cell phone conversations
with other private citizens unless they had a search warrant to do so.
These protections don't typically apply, however, where at least one
party to the conversation consents to either surveillance or recording
by government agents. This is the basis upon which law enforcement officers
can lawfully listen in on, and record, controlled phone calls between
either themselves or a confidential informant, and the the target of the
investigation. In a recent federal heroin trafficking case, I received
numerous recorded phone conversations between my client and a confidential
informant which were highly inculpatory. Even though my client (obviously)
did not consent to the disclosure or recording of those discussions, there
was no way to suppress that evidence because the confidential informant
did consent. As a St. Petersburg criminal defense attorney, I have seen
similar situations in sex crimes; the police will often have the alleged
victim or another involved individual make a "controlled" phone
call to the accused person in the hopes that the the accused will make
an incriminating statement that can, many times, be used to make the case.

Although a person has a reasonable expectation of privacy in his or her
private residence and its curtilage, he or she does not have an expectation
of privacy in any "open fields" appurtenant thereto. This principle
is typically referred to as the "open fields doctrine". In some
instances, the court may need to decide whether the area searched is an
open field or part of the curtilage. Because the the former is not constitutionally
protected and the latter is, the outcome could be very different based
on the court's determination in that regard.

Aerial surveillance, it has been held, also does not typically constitute
a search. If the curtilage of your residence can be viewed from the publicly
navigable airspace above it, any expectation of privacy from that vantage
point is lost. That the curtilage is enclosed with a fence would not likely
change the result. While law enforcement would probably need a warrant
to look over the fence from the ground, the same cannot be said if that
officer were to look down from above while traversing the property in
a airplane or helicopter.

Dog sniffs also do not typically constitute a search as long as the K-9
officer overseeing the sniff is in a place where he or she has a right
to be. For example, a dog sniff of luggage at the airport would not be
considered a search within the meaning of the Fourth Amendment. If, on
the other hand, the sniff occurs at the roadside after a routine traffic
citation is issued, and there is an unreasonably lengthy delay between
the issuance of the citation and the arrival of a K-9 officer, there may
be a basis upon which to have any drugs or contraband found inside the
vehicle suppressed. While this presents a bit of a different issue than
the airport example, it conveys the point that your St. Petersburg criminal
defense attorney should always carefully consider the circumstances in
which incriminating evidence is obtained. Often times, there is more than
one way to skin a cat, and all potential bases for raising a constitutional
challenge to the manner in which evidence was obtained should be thoroughly explored.

Inspection of discarded garbage also does not constitute a search. It has
been held routinely that a person does not have a legitimate expectation
of privacy in the contents of his or her trash once it has been left for
collection at the bottom of the driveway, or otherwise disposed off of
the premises. As a Pinellas County state prosecutor, I saw many search
warrant applications that were based, at least in part, on the discovered
contents of discarded trash, and many criminal successful criminal prosecutions
that were based on that same evidence. The key word here is "discarded". If the trash bags are in the garage, or at the
top of the driveway (for example), a different scenario is presented and a
different result would likely occur. The garage and curtilage of the premises,
once again, is a constitutionally protected area; if trash in either location
were to be searched, a warrant (or valid exception) would likely be required.

What is a seizure?

The Fourth Amendment also prohibits unreasonable "seizures" of
either persons or property. While searches affect an individual's
right to privacy, seizures affect an individual's possessory right
to the object of the search. A person must have a reasonable expectation
of privacy in the item or items that have been subject to confiscation
by law enforcement to invoke Fourth Amendment scrutiny. A person does
not have an expectation of privacy in items that have been abandon or
discarded. The trash at the bottom of the driveway example (above) illustrates
the point here: in that scenario, the accused person has no privacy interest
in the contents of the trash bags (which serves to justify the search)
and has no possessory interest in any items
seized because they have, at that point, been discarded or abandoned. Another
example may be where law enforcement seizes a soda can or cigarette from
a suspect, after he or she tosses it away, for purposes of obtaining a
DNA sample from residual saliva. These samples can often be tested against
samples left at a crime scene to identify the suspect as the actual perpetrator.

A seizure of the person occurs where the officer makes an arrest, or detains
the person briefly for further questioning. If the person is not free
to leave, then a seizure has occurred and must be based on either (1)
"probable cause" (for an arrest); or (2) "reasonable suspicion"
that the suspect is, was, or is about to be, involved in some sort of
criminal activity. You should know that there is nothing precluding the
officer from approaching you and asking you questions or for consent to
conduct a search of your person. This is called a "consensual citizen
encounter". You are, however, under no legal obligation to oblige.
In the absence of "probable cause" or "reasonable suspicion",
you are free to simply walk away, and without consequence. For further
reading on this topic, see our prior blog post entitled
The Three Levels of Police/Citizen Encounters.

What is a search warrant?

A search warrant is an order issued by a "neutral and detached"
judge or magistrate that authorizes law enforcement to search an otherwise
constitutionally protected domain, including a house, office, car, or
conversations, as part of a criminal investigation. As set forth in the
language of the Fourth Amendment (above), the warrant must be supported
by "probable cause". In
Brinegar v. United States, the U.S. Supreme Court held that "probable cause" exists where
"the facts and circumstances within the officer's knowledge,
and of which they have reasonably trustworthy information, are sufficient
in themselves to warrant a belief by a man of reasonable caution that
a crime is being committed".See 338 U.S. 160 (1949). A law enforcement officer may develop probable cause,
sufficient to support an application for a search warrant, based on personal,
first-hand observations, on reliable information provided by other individuals, or both.

The search warrant must also describe, with particularity, the place to
be searched and the items that are to be seized. As former Pinellas County
State Prosecutor, and a St. Petersburg criminal defense attorney, I can
tell you that law enforcement officers describe the places to be searched
and items they are seeking to obtain in painstaking detail.

The facts set forth in the application for a search warrant must be sworn
to, either verbally, in writing, or both. The oath or affirmation requirement
is met by including a sworn affidavit or attestation clause in the warrant
application.

Law enforcement officers are authorized to search only for the items specifically
enumerated in the search warrant. If, for example, the warrant authorizes
officers to search a person's residence for cocaine, the officers
would be permitted to look in dresser drawers, in an effort to locate
any narcotics that may be found there, but they could look in dresser
drawers for a stolen flat screen television set. If the search exceeds
the scope of authority conveyed by the warrant, then any items seized
pursuant thereto may be suppressed.

The police may not, as a matter of course, search all persons found at
the location where the warrant is executed. Persons found on the premises
during the execution of a search warrant may be searched only where officers
have reasonable grounds to suspect that such persons are engaged in, or
otherwise connected to, the unlawful activities that are the subject of
the search. In the absence of that nexus, the search would be unlawful
and any incriminating evidence obtained pursuant thereto would be subject
to suppression.

Exceptions to the Warrant Requirement

Consistent with U.S. Supreme Court precedent, courts throughout the state
of Florida have identified a number of circumstances in which a law enforcement
officer may conduct a search or seizure in the absence of a warrant. This
section presents an overview of some of the more common scenarios in which
warrantless searches have been justified.

Terry Stop

In
Terry v. Ohio, the United States Supreme Court detailed the circumstances in which a law
enforcement officer may conduct a brief, investigatory stop or detention
of a person without a warrant (remember, the Fourth amendment precludes
not only unlawful searches, but also seizures. These brief detentions
have come to be known as "Terry stops". To justify a stop, the officer must have reasonable suspicion
that the person being detained is involved in some form of criminal activity.
"Reasonable suspicion" is a lesser standard than "probable
cause" (which the officer must have in order to effectuate a full-blown
arrest). While probable cause is not not required to conduct a stop, an
officer's "mere hunch" of involvement in criminal activity
is not enough. An uncorroborated anonymous tip is never enough to warrant
to warrant a
Terry stop.

The officer may also conduct a pat down of the detained person's outer
clothing if the officer has reasonable suspicion that the person is in
possession of illegal contraband or a weapon. If the officer can identify
an item, through a pat down of the outer clothing, as contraband (based
on his or her training and experience), then a more intensive intrusion,
such as reaching into the pockets, would be justified. This is known as
the "plain feel" doctrine. Depending on what is found, the officer
may, at that point, develop probable cause to make an arrest. If, on the
other hand, the officer does not suspect that the person is in possession
of weapons or narcotics, and fails to develop probable cause that a crime
has been committed, the officer must allow the person to leave.

Search Incident to Arrest

Florida courts have routinely held that a police officer is justified in
thoroughly searching a person upon making an arrest, including that area
within the person's immediate reach (or "wingspan"). The
rationale for justifying a warrantless search under these circumstances
is based on the prospect that an arrestee could otherwise destroy evidence
(by swallowing it, for example), or obtain a dangerous weapon. There are
limits, however. If, for example, the person was arrested in his or her
kitchen, it is unlikely that the police would be permitted to search in
drawers and cabinets as those areas would not be accessible to the accused.
This would especially be the case where the accused person was handcuffed
behind his or her back. If areas beyond the arrestee's immediate reach
are to be searched, a warrant is required or some other exception to the
warrant requirement must exist to justify it.

Automobile Searches

A person is deemed to have a lesser expectation of privacy in his or her
vehicle than his or her home. One of the main reasons for this is that
a vehicle is "readily mobile", unlike a house or office. Thus,
where an officer believes that contraband may found inside a vehicle,
the driver would be long gone in the time it took for the officer to obtain
a search warrant based on his or her observations. This would also afford
the suspect more than sufficient time to destroy or discard any incriminating
evidence in his or her possession. The reduced expectation of privacy
is also based on the fact that automobiles are not typically a repository
for personal items and effects, the same way a home or office is.

If, during a traffic stop, the officer observes contraband in plain view (e.g. from a vantage point where the officer had a right to be), then the officer
can seize that item without a warrant. This may justify a more thorough
search of the vehicle, including the passenger compartment and perhaps
the trunk.

If the officer has probable cause to believe that contraband will be found
in a particular location, the search of those areas will likely be justified.
Probable cause can be based on what the officer sees (plain view), what
he or she smells, or statements made by one or more occupants of the vehicle (e.g. that drugs or other contraband may be found inside. Probable cause to
search a certain part of the vehicle does not necessarily mean that the
officer has probable cause to search the occupants. To justify a search
of the occupants, the officer must have probable cause to believe that
narcotics or other illicit items will be found on their person.

As many of you are likely aware, a police officer can conduct a search
of the vehicle, including any containers therein, if he or she detects
the odor of burnt or fresh marijuana emanating from inside. In this instance,
the police may also search the vehicle's occupants without a warrant.

If an occupant of the vehicle is
arrested, the officer may not, as a matter of course, search the person's vehicle.
Being arrested for driving on a suspended license would not, in and of
itself, justify a search of the vehicle's passenger compartment or
trunk. A search of the vehicle would, however, if the area searched was
within the arrestee's immediate grabable area, the officer had reason
to believe that evidence connected to offense of arrest could be found
therein, the person consented to the search (see below), or the search
was done pursuant to impoundment inventory protocols.

Vehicle inventory searches do not invoke Fourth Amendment protections because
they are not, at least in theory, done for the purpose of ferreting out
evidence of a crime. Rather, the purpose of an inventory search is to
account for the arrestee's personal belongings, prior to the vehicle
being impounded so that those items can, at some point, be returned. They
are also done to protect the officer from an assertion that certain items
were lost or stolen during the inventory process.

A search of a person's home, in the absence of a warrant, must be based
on probable cause, and sufficient "exigent circumstances" must
exist to justify the warrantless entry. For example, a police officer
would be justified in following a person fleeing from the commission of
a crime into his or her residence if the officer believed that the person
was likely to destroy evidence of the crime's commission in the time
it would take to secure a warrant. Absent
bona fide exigent circumstances, a warrant must be obtained to justify government
intrusion into a private residence. It is difficult to image a place where
an individual would have a greater expectation of privacy (other than,
perhaps, the contents of his or her own body).

Consent

A person can waive his or her Fourth Amendment right against unlawful search
and seizure by consenting to it. The officer does not have to have probable
cause or reasonable suspicion to ask for consent, or to receive it. Consent
must, however, be freely and voluntarily given. If there is any evidence
of coercion, then the warrantless search is unlawful, unless there is
some other exception to the warrant requirement that serves to justify
it. That a person was not aware of his or her right to refuse consent
does not matter.

Many probationers agree to waive search and seizure as part of their sentence.
Because the plea must be entered freely and voluntarily, and with full
knowledge of its consequences, the person's consent is deemed valid.
Waiver of search and seizure gives the probation officer, or any other
law enforcement officer, the right to search the probationer's person,
home, and effects with or without probable cause, and with or without
a warrant. For additional reading, see the "Probation Violations" section of our website.

The Exclusionary Rule

The exclusionary rule is a judicially created doctrine that serves as a
remedy for violations of the Fourth Amendment's prohibition on unreasonable
searches and seizures. It is, essentially, an enforcement mechanism. To
reiterate, evidence obtained without a search warrant, and in the absence
of a valid exception to the warrant requirement, is subject to suppression.
In many instances, the state is not in a position to proceed to trial
where crucial evidence is suppressed. For example, the prosecutor could
not proceed against a person for possession of cocaine where the cocaine,
and any reference to it, was deemed inadmissible by the presiding judge.
In such circumstances, the state would have little choice but to nolle
prosse, or "drop" the charge (unless he or she decided to appeal
the court's ruling, but that is beyond the scope of this post).

The "Fruit of the Poisonous Tree" Doctrine

The "Fruit of the Poisonous Tree" doctrine is an extension of
the exclusionary rule and mandates that all ancillary evidence obtained,
pursuant to the initial unlawful search or seizure, must be suppressed
as well. If, for example, a police officer conducted a traffic stop without
a lawful basis to do so, and thereafter conducted a DUI investigation,
all evidence obtained in that investigation would be subject to suppression.
This would include the officer's purported observations of impairment,
any incriminating statements the accused person purportedly made, his
or her performance on field sobriety exercises (if he or she elected to
perform them) and any blood, breath, or urine test results obtained (if
she or she elected to submit to the requested test). Because the original
stop was "bad", any evidence obtained in connection with it,
is "fruit of the poisonous tree" and, in all likelihood, inadmissible.

The Good Faith Exception to the Warrant Requirement

The United States Supreme Court created a good faith exception to the principle
that evidence obtained pursuant to defective search warrants must be suppressed.
The exception also applies to irregularities in the manner in which the
warrant was executed. The Fourth Amendment is designed, at least in part,
to prevent willful police misconduct and where it can be shown that the
police acted in good faith, otherwise suppressible evidence may be admitted
nonetheless. There are limitations, however. If for example, the police
made willful misrepresentations in the affidavit in support of the warrant,
or if the affidavit is so lacking in probable cause that no reasonable
officer would have relied on it, the protections of the good faith exception are lost.

This exception also applies to warrantless searches. If for example, a
police officer receives seemingly credible information from a reliable
source that a person has committed a felony, the officer locates drugs
incident to an ensuing arrest, and the information that justified the
arrest turns out to be wrong, the person may still be subject to prosecution
for possession of the contraband because the officer was acting in good faith.

The "Inevitable Discovery" Doctrine

In some instances, evidence that is subject to suppression may be deemed
admissible nonetheless if the state can prove, by a preponderance of the
evidence, that the contraband in question would have been discovered
regardless of the unlawful search that initially uncovered it. For example, if a police
officer lawfully detains a person on the street (a
Terry stop), reaches into the person's pocket
without a lawful basis to do so, and finds a baggie of heroin, that item would
be subject to suppression. If, however, a backup officer discovered that
the person had a warrant for his or her arrest while this was taking place,
the otherwise suppressible heroin baggie would likely be admissible because
the person would have been arrested regardless and the drugs would therefore,
have been inevitably discovered (as part of a search incident to a lawful arrest).

Standing

To challenge an unlawful search or seizure, the person's
own Fourth Amendment rights must have been violated. It is only for a violation of
your expectation of privacy in a home, car, office, or other domain that you
may assert your right to challenge that violation. For example, if the
police conducted an unlawful search of my neighbor's house, I would
not be in a position to challenge the legal propriety of that search because
it is not my house, I have no expectation of privacy in it and, therefore,
I lack standing.

Conclusion

In accordance with the Fourth Amendment, warrantless searches and seizures
are unreasonable. To justify a search or seizure, a search warrant must
issue, or some recognized exception to the warrant requirement must exist.
Search warrants must be issued by a neutral and detached magistrate, must
be supported by probable cause, and must describe with particularity the
place to be searched and the items that are to be seized. Warrantless
searches may be justified, but must be based, at least, on probable cause,
or done pursuant to consent that is freely and voluntarily given. Evidence
obtained without a valid search warrant, and in the absence of an exception,
is suppressible. If however, law enforcement acted in good faith, suppressible
evidence may be admitted nonetheless. To challenge an unlawful search
or seizure, it is your rights that must have been affected, if you are
to have proper legal standing.

As always, I hope this post was helpful. Specific questions should be directed
to an experienced St. Petersburg criminal defense lawyer.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.